In all honesty, our title is somewhat (and voluntarily) misleading. There is no clear sign that online dispute resolution is going to be the norm in the near future in Quebec – or anywhere else in Canada for that matter. Even in British-Columbia, where the much talked about Civil Resolution Tribunal should finally launch later this year, it’s doubtful that the judicial process will transfer online for other courts and tribunals any time soon. “Then why the misleading title?”, you may ask. Because recent legislative changes in Quebec have paved the way for ODR service providers to make great strides if they play their cards right.

As most readers probably already know, in February of last year, the Quebec legislature adopted a new Code of Civil Procedure. Said Code should come into effect in the fall of this year and bring forth important changes in how the judicial process is understood under Quebec law. As we mentioned in an earlier post discussing the then draft of what would become Bill 28, one of the most fundamental changes brought forth by the new Code is stated in section 1:

1. To prevent a potential dispute or resolve an existing one, the parties concerned, by mutual agreement, may opt for a private dispute prevention and resolution process.

The main private dispute prevention and resolution processes are negotiation between the parties, and mediation and arbitration, in which the parties call on a third person to assist them. The parties may also resort to any other process that suits them and that they consider appropriate, whether or not it borrows from negotiation, mediation or arbitration.

Parties must consider private prevention and resolution processes before referring their dispute to the courts.

The last part of this section, “[p]arties must consider private prevention and resolution processes before referring their dispute to the courts” – while greeted with much criticism by many within the legal community, including the Canadian Bar Association – could constitute lawyers’ saving grace in allowing us to reimagine how we practice law. It’s also the way for ODR service providers to get their proverbial foot through the door and to demonstrate that properly calibrated online environments can become a powerful, cost-effective, and efficient tool in the pre-judicial dispute resolution process. This is further helped by section 26 of the new Code, which states that:

26. In applying this Code, appropriate technological means that are available to both the parties and the court should be used whenever possible, taking into account the technological environment in place to support the business of the courts.

The court, even on its own initiative, may use such means or order that such means be used by the parties, including for case management purposes; if it considers it necessary, the court may also, despite an agreement between the parties, require a person to appear in person at a hearing, a conference or an examination.

We propose that a combined reading of those two dispositions could imply that ODR should not only be considered as a way of settling a dispute before going to the courts, it should be used whenever possible, if deemed appropriate to help settle a dispute. Is ODR appropriate to settle disputes? The more than 60 million cases settled annually using eBay’s ODR application (the “resolution center”) is a strong indicator that in can be under the right circumstances.

The adoption of sections 1 and 26 of the new Code of Civil Procedure is as strong an endorsement of ODR by a legislator as we’ve seen anywhere in the country. Granted, we do not believe that the endorsement was necessarily what section 26 was designed for, nor that the caveats put forth will always be surmountable (we’ll delve into this issue in one of our future columns), but one could argue that, once this law comes into effect, a party choosing to decline using an ODR platform to try and settle a dispute before drafting a motion to institute proceedings (now referred to as an originating application) would be going against the legislator’s intent. Unfortunately, there are presently no clear guidelines as to the penalties (if any) one will be subject to if he or she refuses to abide by section 1 of the new Code. We can only speculate, as others have, that this will have an impact on how costs are to be awarded. That being said, the underlying premise remains: the new Code is giving us the legislative tools to put ODR at the very core of the dispute resolution process in Quebec. We can only hope that those who would benefit most from this change will take advantage of the situation…

For those interested in these and other technological changes brought forth by the new Code of Civil Procedure, Antoine Guilmain has started writing a series of blog entries on the topic on the Cyberjustice Laboratory’s website. His first post can be found here (in French).

Comments

It is interesting that the Canadian Bar Association resisted the imposition of a duty to consider ADR. Ontario’s Rules of Professional Conduct for lawyers say this:

Encouraging Compromise or Settlement
3.2-4 A lawyer shall advise and encourage the client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and shall discourage the client from commencing or continuing useless legal proceedings.

The first paragraph of the commentary on this article says this:

[1] It is important to consider the use of alternative dispute resolution (ADR). When appropriate, the lawyer should inform the client of ADR options and, if so instructed, take steps to pursue those options.

I do not have the impression that the Ontario affiliate of the Canadian Bar Association, the Ontario Bar Association, is as unimaginative and hidebound as the Quebec wing.